The following article is from the Conway Daily Sun

Effingham—July 23, 2024—Abutters to a proposed gas station now owned by Meena LLC at the old Boyle’s Market on Route 25, who are suing the town and the zoning board of adjustment, had their case heard Wednesday by a land court judge in Manchester.

The case is William Bartoswicz and Tammy McPherson v. Town of Effingham and Town of Effingham Zoning Board of Adjustment.

The ZBA, in January and March denied the abutters’ appeal of the planning board’s July 11 decision to conditionally approve the Meena site plan application. The lawsuit says the ZBA acted “illegally and or unreasonably” in doing so.

The proposed gas station is controversial because environmentalists say the site is situated in a particularly sensitive area above the Ossipee Aquifer. Bartoswicz, has a well only 310 feet from the gas station’s underground fuel storage tanks.

The lawsuit was filed on April 5. Judge Michael Klass heard the case Wednesday in Hillsborough Superior Court North in Manchester. The Sun listened by Webex.

At the end of the 90-minute hearing, Klass took the lawyers’ arguments under advisement. How long he will take to render his decision isn’t known.

The abutters claim the project would violate the town’s 50-foot setback requirements for the diesel canopy/pumps, gas pumps and storm water management devices. The abutters also argue that since the convenience store has been closed for over two years, it lost its grandfathered status in terms of maximum size of a retail facility allowed.

In terms of the setbacks, the question Klass must address is whether items like stormwater infrastructure, would be allowed to be within the setbacks based on a previously issued special exception.

Abutters’ attorney, Biron Bedard of Ransmeier Spellman of Concord, argued those items should be moved or the ZBA needs to grant another approval.

“The error here is that the ZBA thinks because of a special exception that the (setback) requirements go out the window,” said Bedard.

The ZBA’s attorney, Chris Drescher of Cronin Bisson & Zalinsky Attorneys at Law, said that in 2021, Meena was given a special exception that allowed for non- conforming uses to be expanded or changed. The ZBA and planning board were both aware of the setback encroachments.

The case has gone to court multiple times and has been the subject of many planning and zoning board meetings as well as newspaper articles.

“This gas station is the most well-vetted gas station in the history of gas stations,” said Drescher, adding it would be a “disservice” to all involved to have the case opened up again.

“In 2021, the ZBA blessed the expansion of a pre-existing use, as shown on the 2021 plans (the current version of the plans are different),” said Klass. “So, how do you explain the delta between what was approved in ’21 and what’s shown on the plans now, that’s different and arguably intrudes more into the setback?”

Drescher deferred to Meena’s attorney, Matt Johnson of Devin Millimet Attorneys at Law. Johnson said the difference between the 2021 and current plans are that some below-ground stormwater mitigation systems and the canopy were added to meet the conditions for a variance and site plan approval.

Johnson and Bedard seem to be at odds over what setback regulations applied. Johnson thought required setback distances were shorter than what Bedard claimed.

Johnson said Meena has spent a “gigantic amount of money” on stormwater systems, and that the town can’t order them to install the stormwater infrastructure and canopy and then say Meena can’t put them into place.

“So, you can imagine from our perspective, we feel like someone’s playing a political game of gotcha here,” said Johnson.

As for the store, Meena never abandoned it, said Johnson. They couldn’t open the store because the town issued a cease-and-desist order preventing Meena from completing work on installing underground gas tanks. Johnson said it would have been unsafe to open the store with the exposed tanks in the ground. There were also court orders preventing the work from getting done.

Drescher said there’s no definition of “abandoned,” so the ZBA looked at Meena’s intent.

Bedard also said there were problems with how the ZBA made its decision. He said at times members were inaudible because they didn’t use the microphones. He said the town’s minutes and documents contain errors. Even the planning board’s attorney’s name is misspelled in town records.

“Chris Boldt’s name has been screwed up to a level that is, it’s difficult to understand given it has got five letters in it,” said Bedard.

Drescher said Effingham did its job.

“Admittedly, the process was not perfect, but we contend that it was legally sufficient,” he said.